What is the correct approach to concurrent pain, suffering and loss of amenity (“PSLA”) caused by both a whiplash (tariff) injury and a non-whiplash (non-tariff) injury?
Three approaches
There are three possible approaches.
First, take the tariff amount, then, if the non-whiplash injury has caused non-concurrent (different) PSLA, add the amount of common law damages for PSLA for the non-tariff injury (“the First Approach”).
Secondly, add together the tariff amount for the whiplash injury and the amount of common law damages for PSLA for the non-whiplash injury, without any consideration of whether there should be a deduction to avoid double recovery (“the Second Approach”).
Thirdly, add together the tariff amount for the whiplash injury, and the common law damages for PSLA for the non-whiplash injury, then stand back to consider whether to make a deduction for the non-whiplash injury, so as to reflect any overlap between the two amounts, but not so that the award falls below the amount that would be awarded for the non-whiplash injury alone (“the Third Approach”).
Advocates for each approach
The defendant appellants advocated for the First Approach.
The claimant respondents, the Association of Personal Injury Lawyers and the Motor Accident Solicitors Society, advocated for the Second Approach.
In the alternative (by cross-appeal), the claimant respondents advocated for the Third Approach.
Discussion
Lord Burrows (with whom Lords Reed, Lloyd-Jones and Hamblin, and Lady Rose, agreed) gave judgment. There was no dissent.
The assessment of damages at common law for PSLA, including in cases of multiple injuries, was considered over eight paragraphs.
The most important statement was made by Pitchford LJ in Sadler v Filipiak [2011] EWCA Civ 1728 (“Sadler”) at [34] that one should “stand back from the compilation of individual figures … to consider whether the award for [PSLA] should be greater than the sum of the parts in order properly to reflect the combined effect of all the injuries upon the injured person’s recovering quality of life or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting. In some cases, no doubt a minority, no adjustment will be necessary because the total will properly reflect the overall [PSLA] endured. In others, and probably the majority, an adjustment and occasionally a significant adjustment may be necessary.”
The legislation, the facts of the two cases and the decisions at first instance, the judgments of the majority of the Court of Appeal and the dissenting judgment of the Master of the Rolls, were considered before the ratio was recited.
Reasons for rejecting the First Approach
First, there is nothing in the legislation, explanatory notes or memorandum to support it.
Secondly, it would be too complex to apply, it would add to the expense of medical reports, and likely increase costs.
Thirdly, it would produce a “bizarre consequence” that there might be a lower award of damages for PSLA in respect of both whiplash and non-whiplash injuries than would have been awarded for the non-whiplash injury alone; which the Third Approach avoids.
Fourthly, it represents a “more significant departure” from the common law than the Third Approach, which is contrary is the presumption that legislation affects the common law as minimally as possible, and needlessly departs from Sadler, with which the Bench is familiar.
Reason for rejecting the Second Approach
The Second Approach “ignores altogether” the problem of double recovery for the same loss, and contradicts the common law assessment of damages, by rejecting any Sadler deduction.
Guidance on the application of the correct approach
At paragraph 52, a six-step guide to the correct application of the Third Approach was issued:
First: “Assess the tariff amount by applying the table in the 2021 Regulations.”
Secondly: “Assess the common law damages for PSLA for the non-whiplash injuries.”
Thirdly: “Add those two amounts together.”
Fourthly: “Step back and consider whether one should make an adjustment applying Sadler. The adjustment (which in this context will almost always be a deduction rather than an addition) must reflect, albeit in a rough and ready way, the need to avoid double recovery for the same PSLA. The court must respect the fact that the legislation has laid down a tariff amount for the whiplash injuries that is not aiming for full compensation: in that respect, the Sadler adjustment is a slightly different exercise than if one were dealing entirely with the common law assessment of damages for multiple injuries.”
Fifthly: “If it is decided that a deduction is needed that must be made from the common law damages.”
Sixthly, “the final award cannot be lower than would have been awarded as common law damages for PSLA for the non-whiplash injuries had the claim been only for those injuries.”
Although it was not in issue, unnecessary to dispose of these appeals, and therefore did not form part of the ratio, further guidance was issued that, where the exceptionality requirement applies, the tariff amount being assessed at the first step may be increased by up to 20 percent.
Disposal
The appeal (advocating the First Approach) and the cross-appeal (advocating the Second Approach in the alternative) were dismissed.
Written by Dominic Bright.